01a43268
09-29-2005
Milton E. Hill, Complainant, v. Gale A. Norton, Secretary, Department of the Interior Agency.
Milton E. Hill v. Department of the Interior
01A43268
September 29, 2005
Milton E. Hill,
Complainant,
v.
Gale A. Norton, Secretary,
Department of the Interior
Agency.
Appeal No. 01A43268
Agency No. LLM00042
Hearing No. 100-A2-7056X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
in part, REVERSES in part and REMANDS the agency's final order.
I. BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Senior Business Management Officer, GS-14, at the agency's Office
of Acquisition and Property in Washington, D.C. Complainant sought
EEO counseling and subsequently filed a formal complaint on May 19,
2000, alleging that he was discriminated against on the bases of race
(African-American), sex (male), and reprisal for prior EEO activity
when:
in March 1999, [complainant's] name was not referred to the selecting
official for the Group Manager position, Vacancy Announcement
No. WO-99-12;
in April 1999, [complainant's] name was not referred to the selecting
official for the vacant position of Associate State Director, Utah,
GS-15;
in July 1999, [complainant] was not selected for the Bureau of Land
Management's (BLM) District Manager position in Las Cruces, New Mexico;
in January 2000, [complainant] was not selected for the Supervisory
Personnel Specialist, GS-14, advertised under Vacancy Announcement
No. WO-99-015;
in March 2000, [complainant] was not allowed to apply for the Senior
Executive Service (SES) Program;
in November 1999, management officials refused to allow [complainant]
to apply for career enhancing/growth training;
in September 1999, management officials allowed [complainant's]
co-workers and peers to have input on his performance appraisal;
in August 2000, management officials falsified and fabricated
[complainant's] personnel documents;
BLM Officials refused to provide [complainant] travel vouchers and
funds in order to perform his job and tasks;
in January 1999, BLM managers attempted to degrade and dehumanize
complainant;
in August 2000, management officials allowed other management officials,
not in [complainant's] chain of command, to negatively impact his
career;
in December 1999 and July 2000, management officials assigned
[complainant] to non-career enhancing details and jobs, without his
approval and without consulting him;
in December 1999, management officials deliberately attempted to steer
him away from career enhancing assignments and into less visible and
nonessential jobs;
in January 1999, management officials falsified [complainant's] work
accomplishments;
in November 1999, management officials refused to submit [complainant's]
application for the position of Assistant BLM Director Eastern States
Office; and
management officials refused to provide [complainant's] performance
appraisal and comparable awards.
Upon being interviewed by the investigator, complainant clarified
allegations (7) and (8). Complainant stated that allegation (8) is
a re-characterization of what allegedly occurred in allegation (7)
and should not be a separate allegation. IR, Ex. 6 at 57-58. He also
averred that the performance appraisal to which he refers in allegation
(7) resulted in him not receiving an annual award for that year.
We will therefore address allegations (7) and (8) as one allegation in
which complainant alleges that he was discriminated against on the bases
of race (African-American), sex (male), and in reprisal for prior EEO
activity when:
(7)/(8) in September 1999, management officials allowed [complainant's]
co-workers and peers to have input on his performance appraisal, which
negatively impacted his appraisal such that he did not receive an
annual award for that year.
Complainant also clarified allegation (11) before the investigator.
He specified that a management official not in his chain of command
negatively impacted his career by expressing racist and sexist views
against him that led to his non-selection for various training details.
We will, therefore, consider complainant to have alleged in allegation
(11) that he was discriminated against on the bases of his race
(African-American), sex (male), and in reprisal for prior EEO activity
when:
(11) In August 2000, management officials allowed other management
officials, not in [complainant's] chain of command, to negatively impact
his career, by expressing racist and sexist views against him that led
to his non-selection for various training details.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ dismissed allegations (1), (2), (3), (10), (14), and (16)<1>
for untimely EEO contact. The AJ dismissed claims (7), (8), (11),
(12), and (13) for failure to state a claim. The AJ concluded, with
respect to the remaining allegations, that complainant had failed to
produce evidence sufficient to establish a genuine issue of material
fact regarding his claims of discrimination.
The agency's final action implemented the AJ's decision.
On appeal, in a brief consisting of three paragraphs, complainant
contended that genuine issues of material fact exist and that a hearing
is warranted to complete the factual record. The agency argued that the
complainant failed to show that the AJ's decision involved erroneous
interpretations of fact or law, or credibility determinations, and
requested that we affirm its final action implementing the AJ's decision.
II. LEGAL STANDARD
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, complainant must prove, by a preponderance
of the evidence, that the agency's explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a prima facie case of discrimination based on race or sex,
complainant must show: (1) that he is a member of a protected group; (2)
that he was adversely affected by an agency personnel decision, action
or change; and (3) that he was treated less favorably than similarly
situated individuals outside his group or, in the alternative, that
there is some other evidence raising an inference of discrimination.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002 (September 18, 1996).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
We note that the hearing process is intended to be an extension of the
investigative process, designed to ensure that the parties have "a fair
and reasonable opportunity to explain and supplement the record and, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
�Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims.�
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998). See also Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States
Postal Service, EEOC Request No. 05940578 (April 23, 1995).
III. ANALYSIS
As we discuss in more detail below, certain of complainant's claims
were not raised in a timely manner and for that reason, the Commission
affirms the AJ's dismissal of allegations (1), (2), (3), (10), (14),
and (16) for untimely EEO contact. The Commission dismisses allegation
(5) on its own accord for untimely EEO contact. The AJ's decision
for allegations (4), (6), (7), (8), (9), (11), (12), (13), and (15)
is reversed and those allegations are remanded for a hearing.
A. Dismissals
We address first, the untimeliness of complainant's claims cited above.
The Supreme Court has held that discrete discriminatory acts such as
hiring, firing and promotions, that fall outside of the limitations
period are not actionable and no recovery is available. National Railroad
Passenger Corporation v. Morgan 536 U.S. 101 (2002). Even if the discrete
activity is arguably related to other discriminatory acts that occur
within the filing period, they are not actionable if untimely raised.
Id. See also, EEOC Compliance Manual 915.003 Section 2: Threshold Issues,
Timeliness 2-IV (Issued May 12, 2000). However, as the court recognized,
Title VII does not bar an employee from using the prior acts as background
evidence in support of a timely claim. Morgan at 113.
Applying these principles, the Commission affirms the AJ's dismissal
of allegations (1), (2), (3), (10), (14), and (16) for untimely EEO
contact. More specifically, allegations 1 through 3 are discrete acts
challenging the agency's failure to select him for particular positions.
The remaining claims also reference discrete agency actions to �falsify�
his work accomplishments or to degrade him. Under our regulations,
a complainant must initiate EEO contact within 45 days of an alleged
discriminatory act. 29 C.F.R. � 1614.105(a)(1). In this case,
complainant initially made contact with an EEO Counselor on October 12,
1999. The incidents that comprise each of these allegations occurred
before August 28, 1999. Therefore, we find that these allegations were
properly dismissed by the AJ.
The Commission, on its own accord, pursuant to 29 C.F.R. � 1614.405(a),
dismisses allegation (5) for untimely EEO contact. While the statement
of the allegation indicates that the alleged discriminatory act occurred
in March of 2000, a letter from complainant to Mr. Doyle Assistant
Director, Business and Fiscal Resources, shows that the acts that are
the subject of the allegation occurred in or around August of 1998.
Investigator's Report, Exhibit 15. The time elapsed from the occurrence
of the alleged act to the complainant's EEO contact exceeds the 45
day limit. 29 C.F.R. � 1614.105(a)(1).
As stated above, however, although the Commission affirms dismissal of
these claims for untimeliness, they may still be considered as background
evidence of discrimination with respect to the claims that remain viable.
B. Remands
The Commission reverses the AJ's decision for allegations (4), (6),
(7), (8), (9), (12), (13), and (15) and remands them for a hearing.
These allegations all state justiciable claims for which the record
contains genuine issues of material fact or require further development.
We will address each allegation separately in order to discuss the
lapses in the record that need attention or to highlight the record
where a disputed issue is ripe for a hearing.
Allegation (4): In January 2000, [complainant] was not selected for
the Supervisory Personnel Specialist, GS-14, advertised under Vacancy
Announcement No. WO-99-015.
The Commission reverses the AJ's summary judgment finding of no
discrimination in allegation (4) and remands for a hearing because the
record contains genuine issues of material fact and warrants further
fact finding.
In particular, because complainant did not have the opportunity to
fully develop his claim of sex discrimination for this allegation,
summary judgment was inappropriate. The employee selected for the
position was a woman. IR, Ex. 6 at 24. Complainant asserted that
he was not selected because the selecting official, named in IR,
Ex. 6 at 25, thought the selectee would be less likely to disturb the
status quo. Id. While in the process of elaborating on this point in
his statement for the investigation, the interview was interrupted.
IR, Ex. 6 at 25. The investigator then failed to allow complainant to
complete his response regarding why he believed the selection decision
was discriminatory. Id.
Summary judgment is also inappropriate because the record, when viewed
in a light most favorable to the complainant, supports an inference
of discrimination based on reprisal. Complainant's prior EEO activity
consists of previous EEO complaints and discussions with his supervisors
about EEO concerns. IR, Ex. 3 at 49, 54. Complainant contends that the
selecting official knew of his prior EEO activity because he had discussed
his EEO concerns with all of his supervisors, Id. at 49, and written a
letter to one of them explaining his EEO concerns. Id. at 54. He asserted
that, as a result, he had a reputation as an EEO agitator and had become a
pariah in the office. IR, Ex. 6 at 25-26, 69-70. Finding a nexus between
complainant's prior EEO activity and his non-selection would be reasonable
because complainant claims to have discussed his EEO concerns with his
supervisors within seven months prior to this complaint. Many of the
allegations that were dismissed as untimely occurred over that time.
As background evidence, they support an inference of discrimination
based on reprisal. If complainant is indeed a pariah, moreover,
an ongoing adversarial relationship would exist between complainant
and the agency which would further support an inference of reprisal.
Complainant has produced sufficient evidence which, when viewed in a
light most favorable to the complainant, establishes a prima facie case.
For the agency's nondiscriminatory explanation, the selecting
official claimed that the selected employee was better qualified than
complainant. IR, Ex. 9 at 6-8. Complainant asserts that the selected
applicant's qualifications were vastly inferior to his and ill-suited for
the position. IR, Ex. 6, Rebuttals at 205-206, Paragraph 3; IR, Ex. 6
at 27. He states that the selectee's prior experience was primarily
clerical and unfit for a position requiring leadership abilities.
IR, Ex. 6, Rebuttals at 205-206. Complainant also claims that the
selecting official, upon becoming aware that complainant applied
for the position, rewrote the job description to fit the selected
applicant's qualifications. IR, Ex. 6, Rebuttals at 205-206, Paragraph 3.
The evidence in the record, if viewed in a light most favorable to the
complainant, is thus sufficient to establish a genuine issue of whether
the agency's nondiscriminatory reason was pretextual and warrant a
hearing.<2>
The AJ erred in rejecting complainant's evidence of pretext as
�conclusory� and in requiring complainant to provide additional
supporting evidence to survive summary judgment.<3> Complainant makes
specific averments about why he was more qualified. This is sufficient
to create a genuine issue of material fact. See Petty v. Department of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Allegation (6): In November 1999, management officials refused to allow
[complainant] to apply for career enhancing/growth training.
The Commission reverses the AJ's summary judgment finding of no
discrimination for allegation (6) and remands for a hearing because
genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. The record also warrants further
fact finding.
Genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. As detailed above, complainant
presented evidence that he engaged in prior EEO activity and that
his supervisors were aware of it. This allegation occurred within
a time frame such that a reasonable inference of nexus can be made.
The responsible supervisors, named in IR, Ex. 6 at 42, did not proffer
nondiscriminatory explanations to the investigator. Complainant claims
that he was never given a reason for his removal from his training detail.
IR, Ex. 6 at 44.
This allegation was, furthermore, inadequately investigated. Complainant
states that the agency misstated this allegation. He specifically
alleges that the agency removed him from a training detail prior to its
completion. IR, Ex. 6 at 42-43. While interviewing agency officials, the
investigator did not ask one of the named officials about this allegation.
The other was asked what he knew but was not informed of specific facts
complainant had added. Based on these issues found in the record,
a hearing is necessary to address the genuine dispute regarding the
suspicious timing of events and to develop the record after an inadequate
investigation.
Allegation (7)/(8): in September 1999, management officials allowed
[complainant's] co-workers and peers to have input on his performance
appraisal, which negatively impacted his appraisal such that he did not
receive an annual award for that year.
The Commission reverses the AJ's dismissal of allegation (7)/(8) for
failure to state a claim. In order to state a claim, complainant must
allege an actual injury to the terms, privileges, or conditions of his
employment. 29 C.F.R. � 1614.103(a). The AJ found that complainant
had failed to state a claim because a negative performance review is
not an actual injury. A performance review is a preliminary step to
taking a personnel action affecting conditions of employment, and a
complaint based on a performance review by itself is properly dismissed.
29 C.F.R. � 1614.107(a)(5); Kendrix v. Department of the Treasury,
EEOC Appeal No. 01A40581 (Feb. 10, 2004); White v. Department of
Justice, EEOC Appeal No. 01A35308 (April 22, 2004). The AJ, however,
ignored complainant's testimony to the investigator in which he alleged
that the agency mishandled his performance appraisal which resulted in
complainant not receiving an award. IR, Ex. 6 at 54-56. He stated in
his affidavit based on personal knowledge that his coworkers did receive
awards.<4> Id. Complainant thereby alleged a negative employment action
based on discriminatory animus. Complainant successfully stated a claim
in allegation (7) /(8).<5>
Allegation (9): BLM Officials refused to provide [complainant] travel
vouchers and funds in order to perform his job and tasks.
The Commission reverses the AJ's finding of no discrimination on summary
judgment for this allegation and remands for a hearing because genuine
issues of material fact exist in the record.
As detailed above, complainant presented evidence that he engaged in prior
EEO activity and that his supervisors were aware of it. This allegation
occurred within a time frame such that a reasonable inference of nexus
can be made.<6> In response to complainant's prima facie case, the agency
did not provide a nondiscriminatory explanation for the actions alleged
in this allegation. Instead, it disputes the truth of Complainant's
version of the event. The responsible official stated that he did not
receive a request for travel funds from complainant. IR, Ex. 10 at 11.
A genuine dispute of a material fact exists, and a hearing is appropriate
to weight the evidence.
Allegation (11): In August 2000, management officials allowed other
management officials, not in [complainant's] chain of command, to
negatively impact his career.
The Commission reverses the AJ's dismissal of this allegation for failure
to state a claim and remands for a hearing. In order to state a claim,
complainant must allege an actual injury to the terms, privileges, or
conditions of his employment. 29 C.F.R. � 1614.103(a). The AJ failed to
consider complainant's testimony to the investigator regarding allegation
(11) in which he clarified that this allegation referred to when he was
not selected for certain training details because a management official,
not in his chain of command, who participated in the review of his request
for training expressed racist and sexist views against him affecting his
non-selection. IR, Ex. 6 at 73-75. Complainant sufficiently alleged
a negative employment action, non-selection for training, based on
discriminatory animus. Allegation (11), therefore, successfully states
a claim.
Allegation (12): In December 1999 and July 2000, management officials
assigned [complainant] to non-career enhancing details and jobs, without
his approval and without consulting him.
The AJ erred in concluding that complainant failed to state a claim
in this allegation. Complainant specifically alleges that management
rewrote his job description such that his responsibilities were narrowed
and less prominent. IR, Ex. 6 at 78-84. Complainant alleges this took
place because of discriminatory animus on the part of his supervisors.
Supporting evidence is not a requisite for stating a judiciable claim.<7>
Allegation (13): In December 1999, management officials deliberately
attempted to steer him away from career enhancing assignments and into
less visible and nonessential jobs.
The AJ erred in concluding that complainant failed to state a claim in
allegation (13). Complainant alleged that management assigned him to
a position with limited responsibilities, but promoted two of his peers
to be his acting supervisors. IR, Ex. 6 at 84-85. A reassignment and
non-promotion are substantive personnel actions affecting the terms of his
employment. Complainant alleges this took place because of discriminatory
animus on the part of his supervisors. Supporting evidence is not a
requisite for stating a judiciable claim.<8>
Allegation (15): In November 1999, management officials refused to submit
[complainant's] application for the position of Assistant BLM Director
Eastern States Office.
The Commission reverses the AJ's summary judgment finding of no
discrimination for this allegation because genuine issues of material
fact exist regarding complainant's allegation of discrimination based
on reprisal.
Genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. As detailed above, complainant
presented evidence that he engaged in prior EEO activity and that
his supervisors were aware of it. This allegation occurred within
a time frame such that a reasonable inference of nexus can be made.
No specific nondiscriminatory reason is proffered by the agency.
Complainant's supervisor does not recall ever discussing the position
with him, let alone receiving his application. IR, Ex. 7 at 6-7.
He states that while he was not the selecting official that he believes
the person selected �was a good selection.� Id. A genuine dispute,
therefore, exists regarding complainant's claim of discrimination based
on reprisal, and the record requires further development regarding the
agency's nondiscriminatory explanation. This allegation is, therefore,
remanded for a hearing.
IV. CONCLUSION
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission affirms in part and reverses
in part the agency's final action and remands the matter to the agency
in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 29, 2005
__________________
Date
1While the text of this allegation, as recorded
in agency's final action, does not contain a date, the Investigator's
Report reveals that it allegedly occurred in August 1998.
2Genuine issues of material fact exist concerning allegation (4),
even considering the high legal burden complainant faces when showing
prextext in a non-selection case. �The Commission will normally not
disturb the judgment of agency officials in hiring or promotion cases
unless an appellant's qualifications were so plainly superior to those
of the selectee as to compel a finding of pretext.� Henry v. Department
of Labor, EEOC Appeal No. 01911925 (November 25, 1991) (citing Burdine,
450 U.S. at 259) (An employer has discretion to choose among equally
qualified candidates provided the decision is not based on unlawful
criteria). �However, personnel decisions which are idiosyncratic or
suspect will be subjected to heightened scrutiny.� Allen v. Department
of Veterans Affairs, EEOC Petition No. 03910034 (March 21, 1991) (citing
Loeb v. Textron Corp., 600 F.2d 1003, 1012, n. 6 (1st Cir. 1979)).
Complainant's contentions meet this burden. Complainant argues that
his qualifications were plainly superior. Alternatively, he argues that
the selection process was suspect because the selecting official altered
the job announcement.
3In support of her conclusion requiring additional supporting evidence
from complainant, the AJ cites language from a federal court decision
concerning summary judgment in federal civil litigation. The Commission
finds this decision unpersuasive considering the difference between the
EEO administrative process, in which a neutral investigator is charged
with compiling as full a factual record as is possible prior to a hearing,
and the federal civil discovery process, in which the plaintiff bears
the burden to discover evidence in order to survive summary judgment.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003).
4Contrary to the AJ's decision, complainant did not have to produce
further evidence that awards were made. At the summary judgment
stage, the facts are to be viewed in the light most favorable to the
non-moving party (complainant) and credibility determinations are
inappropriate. Anderson, 477 U.S. at 255. Complainant's affidavit
is adequate. See Petty, supra at 13.
5The AJ argued in dicta that, even if complainant had stated a claim,
summary judgment was appropriate because complainant failed to establish
a prima facie case of discrimination. The Commission disagrees.
Genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. Complainant established a prima
facie case of discrimination based on reprisal, as detailed above,
for acts occurring within the several months prior to his EEO contact.
This allegation occurred within that time frame. As a nondiscriminatory
explanation, the agency official who conducted the appraisal claimed
that he was forced to consult complainant's coworkers because changes
in the department made it such that no direct supervisor of complainant
was available to comment on his work performance. Counselor's Report
(CR) at 5. Complainant contends that, while his former supervisors
may have been serving in different positions, that they could have been
contacted to contribute to his performance appraisal. IR, Ex. 6 at 55-56.
A hearing is appropriate to weigh the evidence and further develop the
record.
6While the statement of the allegation, as recorded in the agency's final
action, does not contain a date, the Investigator's Report reveals that
it took place in September 1999.
7The AJ argued in dicta that, even if complainant had stated a claim,
summary judgment was appropriate because complainant failed to establish
a prima facie case of discrimination. The Commission disagrees.
Genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. Complainant established a prima
facie case of discrimination based on reprisal, detailed above, for
acts occurring within the several months prior to his EEO contact.
This allegation occurred within that time frame. The responsible
supervisors deny knowledge of the alleged actions. They do not offer a
nondiscriminatory explanation. A genuine dispute of a material fact
therefore exists, and a hearing is appropriate to weigh the evidence
and further develop the record.
8The AJ argued in dicta that, even if complainant had stated a claim,
summary judgment was appropriate because complainant failed to establish
a prima facie case of discrimination. The Commission disagrees.
Genuine issues of material fact exist regarding complainant's allegation
of discrimination based on reprisal. As detailed above, complainant
established a prima facie case of discrimination based on reprisal.
The agency did not offer a nondiscriminatory explanation for this
allegation. A genuine dispute of a material fact therefore exists and
the record requires further development.